Effect of sex offender crackdown still debated

Gardner paroled before 2006 measure took effect

Jessica’s Law, which strengthened punishments for sex offenders and imposed limits on where they can live, continues to stir controversy among legal experts and citizens jarred by the deaths of two North County teens.

As portions of the law continue to be debated in the courts, some wonder whether it would have altered the fates of convicted sex offender John Albert Gardner III and Chelsea King, the 17-year-old Poway honor student he is accused of killing.

Had the law been in effect when Gardner was paroled in 2005, experts say there’s a chance he could have been locked away in a state hospital, possibly for the rest of his life.

Since the measure was enacted in California in 2006, Jessica’s Law has prompted several legal challenges on the grounds it violates the constitutional rights of those it restricts.

Among the leading issues is a provision prohibiting sex offenders from living within 2,000 feet of parks or schools. Four registered sex offender parolees, two of whom are from San Diego, contested this part of the law, saying it leaves too few places where they would be allowed to live.

The state Supreme Court ruled Feb. 1 that it needed more information, particularly the extent of available housing — that complies with the residency restrictions — where each parolee lives. Their cases were sent back to the trial courts for more hearings.

“Is it constitutional for people to be homeless?” said Ernest Galvan, a San Francisco lawyer who represented the men. “All of that will be developed in the lower courts.”

Another dispute focuses on a portion of the law that allows sexually violent predators to be confined in a state hospital long after they’ve served their prison sentences.

In January, the state Supreme Court ruled in a case from San Diego that authorities may not be able to treat sex predators differently than others confined in state hospitals, such as those found not guilty by reason or insanity or mentally disordered sex offenders, by holding them indefinitely.

The court said state prosecutors needed to provide more evidence that indefinite commitments do not violate the Constitution’s equal-protection guarantee.

The case was returned to San Diego.

Some experts say Gardner, who was convicted of felony charges in a March 2000 attack on a 13-year-old girl, might have been sent to a state mental hospital if Jessica’s Law was in place when he was paroled in 2005. The measure wasn’t passed until more than a year later.

As the date of his parole approached, Gardner likely would have been screened by state authorities to determine whether he qualified as a sexually violent predator, a designation reserved for less than 1 percent of California’s sex offender population.

Gardner would have been evaluated by officials within the state Department of Mental Health, who decide — based on recommendations by psychologists — whether to forward the case to the district attorney.